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  1. #21  
    i agree this is not frivolous. By definition frivolous means of little weight or importance or an unsound basis under law. Id say false advertising is of great weight and there is plenty of legal basis that they falsely advertised. Like MHR im not advocating sueing Palm, just saying it would be legally sound if tried and could be easily proved
  2. #22  
    First of all, there needs to be some clarification:

    The suit against McDonald's was not just a lady who accidentally burned herself. It was discovered that McDonald's purposefully set their coffee temperatures at extremely high temperatures, for a multitude of reasons, one being to cover up the taste, and second to keep it hotter longer. They did this knowing full well the possible dangers, and so they were found to be liable.

    Secondly, to prove false advertisements, there are many elements that plaintiffs have to prove. Some that stand out immediately: plaintiffs have to prove that defendant knowingly, willfully, and purposefully made the false claim in order to trick consumers. I do not see how this could be easily proven. Perhaps if you had on hand some confidential document that details Palm executives saying "hey let's trick these people". And even if you did have this document, it might not even be admissible in court, depending on how you obtained it.

    Another element that plaintiffs have to prove is an actual damage or injury that resulted from the false claim. I'm not saying this is impossible to prove, but difficult.

    Finally, you say that this lawsuit is not frivolous because false advertising is "of great weight".

    A frivolous lawsuit is not one where the law in the claim is not of great weight. I would argue that all laws are of great weight. Frivolous lawsuits go to the intent behind the claim. What are the intents behind this claim? What is to be gained?

    I think you should look into it a bit further before brushing it off as "legally sound" and "easily proved".
  3. #23  
    I say this is frivolous because what are you going to claim? What sort of damages can you claim in this case?

    Was Palm's advertisement something that was material to the device? Sure, a lot of us in this forum will say that it was, because we all miss the threaded sms. But really, was it a material element of the device?

    Was Palm's advertisement also something that would sway the general public to purchasing the device? Is this something that would have determined whether somebody purchased the device? And we can't only look at those who have had 650s. We're looking at the general public here. Do the majority of your friends even know what threaded sms is? (And if they do... maybe get some more friends?)

    Here is a quick rule from some caselaw:
    To state claim for false advertising under Lanham Act, plaintiff must allege that: (1) defendant made false statement of fact in commercial advertisement or promotion about its own or another's product; (2) statement actually deceived or had tendency to deceive substantial segment of its audience; (3) deception was material, in that it was likely to influence purchasing decision; (4) defendant caused its false statement to enter interstate commerce; and (5) plaintiff has been or is likely to be injured as result of false statement, either by direct diversion of sales from itself to defendant or by lessening of goodwill associated with its products
  4. #24  
    You are simply mistaken about the elements of a false advertising claim in California under Section 17500 of the Business and Professions code.

    Take a look at language of the code, you'll see. The standard is a "knew, or should have known" standard. Nothing more.

    Palm clearly knew, or should have known, that the 700wx didn't have threaded SMS.

    You seem to conflate a fraud in the inducement claim, or some other common law tort, with the statutory false advertising violation at issue.

    They're very different, in terms of elements, standards of proof and potential damages.
  5. #25  
    Let's first dispense with the 4th element--there's no question that Palm deals in interstate commerce.

    And for the sake of this game, let's say element 1 is proven as well.

    I think elements 2, 3, and 5 are what will get you.
  6. #26  
    Who said this was a Lanham Act violation?

    The Lanham Act, for the unitiated, addresses federal trademark rights and related rights and claims attendant to those rights.

    The False Advertising it addresses is in that vein.

    Here, we're talking about false advertising that's of a consumer protection vein, not a brand or TM protection vein.

    The Lanham Act is not relevant here.
    Last edited by MHR; 09/22/2006 at 07:32 PM.
  7. #27  
    Just use SMS Threader by TPSW until Palm can get the official one from the 750V ported to the 700WX.
  8. #28  
    Quote Originally Posted by klurfdawg23 View Post
    sorry but post number and join date do have an effect on validity here on boards.
    and i can see why u didnt have an account for a while *post reported to mods*
    I have to disagree with this. Many smart people come here, are new, and post great things. And there are also lurkers who post once in a while. Doesn't mean their posts are invalid.
    HP has officially ruined it's own platform and kicked webOS loyalists and early TouchPad adopters to the curb. You think after you drop it like a hot potato and mention it made no money and is costing you money, anyone else wants it??? Way to go HP!!

    And some people are fools to keep believing their hype. HP has shown they will throw webOS under the bus and people are still having faith in them??? News flash: if it's own company won't stand behind it, it's finished!
  9. #29  
    Smart or not, certain people's opinions from members who have been here longer are respected more. No matter how much anyone says no, newbies opinions and claims are not as highly regarded. Thats real life, experience leads to people believing you more. Im going to trust a doctor with 10 years experience then someone out of med school, no matter whos "smarter" by whatever standard, its just and experience under the belt thing.

    But his use of vulgar language for no reason totally discredits anything said in a "muture" person's public forum. Any 5 year old can spit out a swear but it takes mature person to have a debate as adults. If you want to debate valid opinions you must keep a certain level of maturity forpeople to respect your words
    Last edited by klurfdawg23; 09/22/2006 at 07:53 PM.
  10. #30  
    You're right, MHR, I was mistaken.
    However, I still think there are many issues that have to be overcome, such as Proposition 64, that requires that plaintiff suffer an actual injury/harm when bringing a claim under this section.

    I just don't see how the lack of threaded sms could constitute this harm. I mean, would you all have decided not to purchase the device if there was no threaded sms?

    I mean, you could try to bring it as a class action... but I don't think it would satisfy the many requirements to bring it as class action....

    Is there really a claim?
  11. #31  
    Really mixed emotions about this - even though I'm fairly new to treocentral... I've been using PPC's for nearly 5 years (yes, I did feel funny buying a device with a 'palm' logo..)

    CA lawsuits do, indeed, make lawyers richer. In most CA's, the only true benificiaries are the lawyers, and 1-2 people who initiated the lawsuit... Everyone else usually gets little more than spare change.

    On the other hand, there are cases where others have benifited as well. The Verizon v710 lawsuit comes to mind. In that case, Verizon replaced the v710's with other equipment. I never paid close enough attention in that case to determine how much the lawyers and 1-2 original people got, however.

    However, about a lawyer working for free - this is about as likely as politics in the US being friendly. Oh, they'll take the case without charging you, but you better believe that they'll push the case until they get money out of it. The lawyers won't be happy if the complaints are corrected.. they want money. Palm is well aware of this, and so won't really be much more likely to rush the SMS app out the door quicker... Afterall, they'll be paying out to the lawyers no matter what happens unless they win the case. (And they might even hold back the release of the app as some courts would interpret releasing it as being an admission of guilt.)

    Finally, if you start a CA against Palm, you have to have in mind what you'd want for remedies. Just getting the SMS app? PErhaps you want Palm to refund the cost of the device? BTW, will Sprint be included as a defendant? Afterall, they allowed the device to be released in its current form, so they must also bear some of the guilt... if not the majority of it... (perhaps Sprint is the reason it's missing the threaded SMS....)

    Would I join an existing CA against Palm for this issue? Maybe... though I wouldn't be part to initiating it. Personally, I don't see any benifit for me to start it... the possible remedies aren't worth my effort. As well, it might harm me more than help me... (if Palm decided to hold back any threaded sms for the above mentioned reasons.)

    On the other hand, I feel no guilt whatsoever in bugging their support staff 3-4 times a week about it.
  12. #32  
    Well technically you wouldnt have to do anything. I was part of the v710 settlement and all that happened was I was mailed a few forms saying "hey youre in the settlement class, and i said cool", had to fill out a page or so of info and got the check in the mail, not really much effort per say to join in. But again ill stress I dont feel at this time legal action is required. Give it some time and see if the rumored patch is coming out and if not then sign me up when the time comes. But im sure by then theyll fix it or well get a fix from the 750v hackers
  13. #33  
    Quote Originally Posted by klurfdawg23 View Post
    sorry but post number and join date do have an effect on validity here on boards.
    *
    Only to morons.
    Look, just because I am new here does not mean I am new to either palm, smartphones, SMS, or any issues related to them. So keep your arogant nonsense in check.

    This thread was quite simple, he has asked if a lawsuit against palm was a good idea. Obiwan, myself, and a few others have replied with our thoughts. If the OP wanted a "Please help me whine about SMS and agree with me about a lawsuit" thread, he should have stated as much.

    Quite frankly, if this type of hostility to honest and open communication is unwelcome here, I will be looking for a better resource for my information here on out.


    Finally, to all you Palm "experts" who have spoke up, why have you continued to buy these devices for all these years, starting way back with the Treo 600, if they have been defective trash with false promises? Why do you continue to support the company buy buying their misrepresented products? Also, if threaded SMS was so important to you, why did most of you rush out to buy it the week it was released? Why not wait and see if this was yet another dissapointment from Palm? After all, you seem to be experts on all of the broken promises in the past, why trust them on the 700wx?
  14. #34  
    Quote Originally Posted by klurfdawg23 View Post
    Well technically you wouldnt have to do anything.
    Correct... for joining a CA. It's a bit more work when initiating...

    Your probably right about it not being the time yet for a CA. My understanding is that Palm has acknowledged the issue (even if outside normal channels) and is working to correct it. In other words, they are already working towards what would be your most likely remedy anyway... so a judge would likely see that and dismiss... (unlike Verizon who refused to re-enable the BT profile they hacked out of the v710.)

    On the other hand, and again assuming that they are intending to fix the issue, they REALLY need to post something on their website "officially" stating something to the effect of:

    "previous advertisements mentioned threaded SMS. We regret that in order to deliver the product as soon as we did, the threaded SMS application wasn't included. However, it should be included in a future firmware update. blah..blah.."

    This would be Palms best way of covering their backsides... (assuming they really do intend to release it in a firmware update... )
  15. #35  
    Quote Originally Posted by Mr Snappy View Post
    Finally, to all you Palm "experts" who have spoke up, why have you continued to buy these devices for all these years, starting way back with the Treo 600, if they have been defective trash with false promises?
    From one newbie here to another: relax. It's only a thread to discuss an idea.. no one has actually started a lawsuit. The OP should be appreciated for discussing something like this BEFORE initiating it.
    Last edited by gary_d; 09/22/2006 at 08:22 PM. Reason: sarcasm removed..
  16. #36  
    Quote Originally Posted by Mr Snappy View Post
    It would help if you told us what you plan to sue PALM about
    because of false advertising : palm advertises threaded SMS for 700wx. It's not in the product.

    Palm did this with the 650 or 600 - said wifi capable or something like that.

    When I run my business . . . i am obligated to deliver what I advertise. Palm is no different.

    The explanation? Treo 700wx was not ready to ship, but they had to do it as is and deliver an update or else they would not have made their quarterly numbers (they think which is worse and they make a calculated business decitions).

    I'd say go for it.
  17. #37  
    Quote Originally Posted by Mr Snappy View Post
    Only to morons.
    Look, just because I am new here does not mean I am new to either palm, smartphones, SMS, or any issues related to them. So keep your arogant nonsense in check.

    This thread was quite simple, he has asked if a lawsuit against palm was a good idea. Obiwan, myself, and a few others have replied with our thoughts. If the OP wanted a "Please help me whine about SMS and agree with me about a lawsuit" thread, he should have stated as much.

    Quite frankly, if this type of hostility to honest and open communication is unwelcome here, I will be looking for a better resource for my information here on out.


    Finally, to all you Palm "experts" who have spoke up, why have you continued to buy these devices for all these years, starting way back with the Treo 600, if they have been defective trash with false promises? Why do you continue to support the company buy buying their misrepresented products? Also, if threaded SMS was so important to you, why did most of you rush out to buy it the week it was released? Why not wait and see if this was yet another dissapointment from Palm? After all, you seem to be experts on all of the broken promises in the past, why trust them on the 700wx?
    Then go ahead and leave youre the only one causing hostility calling people whiners and complaining why buy it. Dont post in the thread if you dont agree why it was started, man up and start your own thread then, easy as that
  18. #38  
    I'm surprised that Palm has not already been sued for this. The more I think about it the more I say sue them. They need to deliver what they promise.


    Palm has had a number of lawsuits in the past on defective products that they knew about (have yet to see anything about the defective battery connector on treo 600s that they knew about).
  19. #39  
    Quote Originally Posted by lawrence.c.lee View Post
    You're right, MHR, I was mistaken.
    However, I still think there are many issues that have to be overcome, such as Proposition 64, that requires that plaintiff suffer an actual injury/harm when bringing a claim under this section.

    I just don't see how the lack of threaded sms could constitute this harm. I mean, would you all have decided not to purchase the device if there was no threaded sms?

    I mean, you could try to bring it as a class action... but I don't think it would satisfy the many requirements to bring it as class action....

    Is there really a claim?
    Prop 64 reformed 17200, not 17500. It doesn't affect this issue, although 17500 has always been more limited than 17200. Hell, a 17500 claim is also actionable under 17200, right? Prop 64 just deals with standing, etc.

    Look, I counseled against legal action now. I still do.

    All I want is the software we were told was in the device. Palm has the software -- it's in the 750v running effectively the same OS.

    And yes, I would likely not have purchased the device had I known that it lacked threaded SMS.

    Let's all cool off a while and see how things shake out over the next week or so.

    I remain hopeful that we'll see a positive resolution (i.e., threaded SMS in our 700wx's) soon.
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    waaaaaaaaaaaaaaaaaaaaaa
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